K1 refusal :( Suggestions

[SalishSea 17,802]

37 minutes ago, Lili_K said:

Sorry another question. Do we submit form I-134 or I-864? I'm not sure which one to use.

I-134 for the K-1 embassy interview,  but, as the I-864 will be required for AOS, I would always recommend  looking into the form and it’s requirements now.   125% of the FPL is a major difference, for example, and will be required just a few months later.

[Regi 11]

15 minutes ago, Villanelle said:

IF you marry you can no longer pursue the K visa. There is no 'putting it in your pocket'. You need to be single and unmarried to get a K visa. So you can either marry (now) and file the CR (now) or you can wait until you have 2019 taxes to submit and see if the K visa is issued. Typically when a K is refused it is sent back to USCIS. However it seems the Embassy is not going to send the case back and will hold it until you are able to send 2019 transcripts. In the US you can file taxes starting in Jan if you have all your paperwork and the deadline to file is in April. Most people do not have all their paperwork in Jan though. But since your fiance is self employed they may be able to file in Jan or Feb, possibly March depending how fast they can gather what they need to file. 

Also when things get delayed like this you usually need a new medical and new police reports as they expire as well. 

Thank you so much for your answer! 

I certainly would like to make everything legally. I am traveling to different countries since 2003 and have been to the USA at least 6 times and never overstayed. For me the legal way is the priority and have asked my question to have a clear mind that I considered every single option.

I will check regarding timing for filing the taxes as soon as my fiancee wakes up. But your answer gave me so much hope and light in the tunnel 🌹❤ 

[SalishSea 17,802]

1 minute ago, Regi said:

Thank you so much for your answer! 

I certainly would like to make everything legally. I am traveling to different countries since 2003 and have been to the USA at least 6 times and never overstayed. For me the legal way is the priority and have asked my question to have a clear mind that I considered every single option.

I will check regarding timing for filing the taxes as soon as my fiancee wakes up. But your answer gave me so much hope and light in the tunnel 🌹❤ 

Since we are only about six weeks from the end of the tax year, and the embassy appears to be allowing you to submit the 2019 transcript before sending the petition back to USCIS, you may want to give it enough time to get that accomplished before going the other route of the CR-1.  As Villanelle pointed out, once you are married, that ends your K-1 eligibility, regardless of where you are in the process.

[Regi 11]

1 minute ago, Jorgedig said:

Since we are only about six weeks from the end of the tax year, and the embassy appears to be allowing you to submit the 2019 transcript before sending the petition back to USCIS, you may want to give it enough time to get that accomplished before going the other route of the CR-1.  As Villanelle pointed out, once you are married, that ends your K-1 eligibility, regardless of where you are in the process.

@Jorgedig thank you for your reply.  You have been responding on this thread very actively and I would like to thank you for your time and support. I am thinking about sending an email to the embassy to make sure I have understood correctly and they definitely hold our case and wont send it back 

[SalishSea 17,802]

Just now, Regi said:

@Jorgedig thank you for your reply.  You have been responding on this thread very actively and I would like to thank you for your time and support. I am thinking about sending an email to the embassy to make sure I have understood correctly and they definitely hold our case and wont send it back 

That sounds like a good idea.  It would seem that some misunderstanding happened with the bank statements, but if they are giving you the time needed for your fiancé to file another year’s taxes, that is a great opportunity to fix this.  Best wishes, and please keep us updated!

[Regi 11]

1 minute ago, Jorgedig said:

That sounds like a good idea.  It would seem that some misunderstanding happened with the bank statements, but if they are giving you the time needed for your fiancé to file another year’s taxes, that is a great opportunity to fix this.  Best wishes, and please keep us updated!

I will definitely! 🙏 Thank you!

[Russel1995 163]

2 hours ago, Regi said:

I will definitely! 🙏 Thank you!

I would definitely wait as well.  Your fiance could try to file taxes as soon as he has all his documents in order and hopefully get transcripts by april.. aka, much faster than a new k1 or cr1.. and if denied will allow you to decide how to increase that income for the next attempt or find a co sponsor.  

 

As for deciding for the cr1/k1,  I'd check into the stats for your country with each visa and look at your personal case..  alot of times I think the cr1 may be better but advantages of the k1 that favored me was:

 

1. Cheaper to get process started so you can save up for the most costly steps.  although will cost more in the end.

2. Doesnt include a immediate marriage if relationship is fairly new (i knew my now wife for  6 to 8 months before filing)

3. Doesnt require vaccine requirement at interview (but requires at AOS, my insurance covered my fiances and her sons. was near $500 cheaper this way)

4. My country specifically (Mexico). k1 schedules their own interview.. cr1 needs to wait for the consulate to schedule..  took us 327 days from filing for our k1 (could have been 230ish but I decided not to reschedule earlier when slots opened up) this is about half the time of a CR1/IR1 visa from Mexico. but your country may differ.

Edited November 15, 2019 by Russel1995

[Regi 11]

2 hours ago, Russel1995 said:

I would definitely wait as well.  Your fiance could try to file taxes as soon as he has all his documents in order and hopefully get transcripts by april.. aka, much faster than a new k1 or cr1.. and if denied will allow you to decide how to increase that income for the next attempt or find a co sponsor.  

 

As for deciding for the cr1/k1,  I'd check into the stats for your country with each visa and look at your personal case..  alot of times I think the cr1 may be better but advantages of the k1 that favored me was:

 

1. Cheaper to get process started so you can save up for the most costly steps.  although will cost more in the end.

2. Doesnt include a immediate marriage if relationship is fairly new (i knew my now wife for  6 to 8 months before filing)

3. Doesnt require vaccine requirement at interview (but requires at AOS, my insurance covered my fiances and her sons. was near $500 cheaper this way)

4. My country specifically (Mexico). k1 schedules their own interview.. cr1 needs to wait for the consulate to schedule..  took us 327 days from filing for our k1 (could have been 230ish but I decided not to reschedule earlier when slots opened up) this is about half the time of a CR1/IR1 visa from Mexico. but your country may differ.

Our k1 took us 6 months from the start to the interview day. If k1 fails, then for sure nothing left than cr1

[payxibka 10,045]

7 hours ago, Regi said:

Good morning all,

 

UPDATE:

My fiancee sent an email to the Embassy today morning.

 

Just now I have received a reply from the Embassy to my last message where I have provided the requested IRS. Here its:

 

Thank you for your email. US Immigration law requires that the consular officer analyze the totality of the applicant’s circumstances, including, but not limited to: age; health; family status; education and skills; assets, resources and financial status; also, where appropriate, the affidavit of support. If, after conducting the interview and evaluating the totality of the applicant’s circumstances, including any applicable documentation, the consular officer is not convinced the applicant will not be a public charge in the United States, they are obligated to refuse the applicant under section INA 212(a)(4)(A). Our records indicate that your application is refused under INA 212(a)(4)(A) for public charge.

 

You are welcome to send us petitioner’s 2019 IRS tax transcript once it is ready, and the Consular Officer will again review your petition.

 

What do you think?

I think this is the best outcome you could have hoped for!!!

[Regi 11]

40 minutes ago, payxibka said:

I think this is the best outcome you could have hoped for!!!

@payxibka Indeed 🤗 I started to smile again 🙃

[jaysaldi 213]

9 hours ago, Jorgedig said:

The thing is, the consular officers/consulates have discretion.  This is why income requirements are considered guidelines.  Everyone's situation is different.

But why in the world would one consulate consider assets and one consulate be permitted  to exercise "discretion" not to consider it?  It's not as if there are local conditions in Uzbekistan that make it more likely that an Uzbek woman marrying a husband with assets only would be more likely to become a public charge, are there?  It seems very arbitrary to me and not based on a valid reason.

 

Also, before getting to discretion can we start with the question of, under the state department's policies, are K-1 visa petitioners allowed to rely on assets or not? What are the written rules/guidelines on this? Is it not allowed, but some consulates exercise discretion to consider assets? Or is it allowed, and some consulates are exercising discretion to say no? 

[geowrian 22,337]

10 minutes ago, jaysaldi said:

Also, before getting to discretion can we start with the question of, under the state department's policies, are K-1 visa petitioners allowed to rely on assets or not? What are the written rules/guidelines on this? Is it not allowed, but some consulates exercise discretion to consider assets? Or is it allowed, and some consulates are exercising discretion to say no? 

Policies for consideration were provided in the link to the FAM previously.

Assets can be considered. Whether that satisfies a CO or not is the discretion. For an I-134, there are very few hard rules. I have not heard of a CO explicitly saying they won't consider assets, but it's known that certain countries tend not to put much to any weight on them for an I-134 and prefer to see income. Now if somebody had like $10mil in assets, that would likely be very favorable even with no income vs somebody that has $100k and low income. But that's just my $0.02.

Edited November 15, 2019 by geowrian

[jaysaldi 213]

20 minutes ago, geowrian said:

Policies for consideration were provided in the link to the FAM previously.

Assets can be considered. Whether that satisfies a CO or not is the discretion. For an I-134, there are very few hard rules. I have not heard of a CO explicitly saying they won't consider assets, but it's known that certain countries tend not to put much to any weight on them for an I-134 and prefer to see income. Now if somebody had like $10mil in assets, that would likely be very favorable even with no income vs somebody that has $100k and low income. But that's just my $0.02.

OK, thanks I see it now. It says that in making the public charge determination, the consular officer must consider the applicant's assets. I assume that includes the sponsor's assets, because at no point in the K-1 process do the ask the beneficiary about his/her assets.

So my question is, why do VJ posters say that consular officers have discretion not to consider assets?  I don't see that they have that discretion, given that the word "must" is used.

[geowrian 22,337]

1 minute ago, jaysaldi said:

So my question is, why do VJ posters say that consular officers have discretion not to consider assets?  I don't see that they have that discretion, given that the word "must" is used.

It should be considered by policy. How it is considered is up to their discretion. As noted, some may put very little to no weight on it (unless it is quite significant).

[jaysaldi 213]

8 hours ago, Regi said:

Thank you so much for your answer! 

I certainly would like to make everything legally. I am traveling to different countries since 2003 and have been to the USA at least 6 times and never overstayed. For me the legal way is the priority and have asked my question to have a clear mind that I considered every single option.

I will check regarding timing for filing the taxes as soon as my fiancee wakes up. But your answer gave me so much hope and light in the tunnel 🌹❤ 

I think he can file in late January.

 

What was his income in 2015, 2016, and 2017? 

 

If higher than 2018 and above the poverty guidelines, I would send in those transcripts too with the 2019 transcript.

 

What is his education level, what jobs was he working in 2015-2017, and what low paying job did he work in 2018, and what is the nature of his high paying self employment now?

If they are holding his petition, I'd recommend that he file as early as possible in late January, get the tax transcript as soon as possible, then send the 2019 transcript and any favorable 2015-2017 transcripts to the embassy when the gets the transcripts, along with a cover letter explaining his financial situation and pitching it in the most favorable light to him.  I would also include the bank statement showing that he has a lot of cash in the bank not just in early 2019 but a statements from every quarter (every three months) dating back years proving that his mom and dad didn't just deposit $100,000 in his account for purposes of fooling the embassy, and proving that he has had a lot of assets for a long time and that these assets were earned through legitimate means.

 

If his 2018 income was low because he took a few months off to travel to see you, he should explain that in the letter. If it was low due to missing work due to a temporary and now cured health condition, he should say that. The cover letter should be brief (1-2 pages) but it should convince the consulate (I'm not poor, I'm not going to be poor in the future, here's proof I'm not poor and haven't been poor, I'm asset "rich" and usually have a high income and my 2018 low income was an aberration for x reason that won't happen again."